YEUNG LAI PING v. SECRETARY FOR JUSTICE

CACV 206/2019

[2022] HKCA 689

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 206 OF 2019

(ON APPEAL FROM HCPI NO 833 OF 2002)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 8 March 2021, this court gave judgment (“CA Judgment”) dismissing the appeal of the defendant as the representative of the Hong Kong Government against the judgment of Bharwaney J dated 1 April 2019, in which the judge found that the Department of Health (“DOH”) had breached its duty as the plaintiff’s employer by assigning to her excessive surgical extractions (“SX”) when she was working at the North District Hospital (“NDH”) on either 30 October 1999 or alternatively between September 1998 and October 1999 and awarded the plaintiff damages in the region of $22 million with interest.

2.  The factual background of this matter has been set out in §§3 to 36 of the CA Judgment. In gist:

(1)  The plaintiff practised as a dentist in various positions in the private and public sectors for eight and a half years before her posting with NDH from October 1998 to October 1999. During this period, she was assigned significantly more SX than other comparable dental officers in the DOH’s employment.

(2)  She developed symptoms in her right hand and wrist in around mid-1999 and started wearing a working splint in late July or early August 1999. She was granted sick leave from 4 to 23 October 1999. The consultation note dated 25 October 1999 described her symptom as partly relieved during the rest period but she was not granted further sick leave on that day.

(3)  When she returned to work on 25 October 1999, she was still assigned a number of SX for the week of 25 to 30 October including three SX on the Saturday morning of 30 October. She suffered excruciating pain in the right wrist after she performed the third SX. She was later diagnosed to have suffered carpel tunnel syndrome (“CTS”) and a tear to the triangular fibrocartilage complex (“TFC”), which eventually ended her career as a dentist.

3.  On 7 April 2021, the defendant filed a notice of motion seeking leave to appeal from the CA Judgment to the Court of Final Appeal.

4.  The defendant seeks leave to appeal on a variety of grounds concerning the approach to pleadings, evidence and fact finding, the standard of care, reasonable foreseeability, breach of duty and apportionment/assessment of quantum. The questions said to be of great general or public importance are framed as follows:

(1)  Whether a defendant may be found liable for breach of employer’s duty or negligence on a basis which has not been pleaded, on the ground that material facts upon which liability on such basis is found to have already been pleaded, when they were merely pleaded as a part of a materially different basis of liability? (“Question 1”)

(2)  Whether factual findings on the nature of injury suffered by a plaintiff employee, and causation between such injury and the alleged breach of duty committed by the defendant employer, may be made by resorting to “common sense” to fill a gap not covered by the medical evidence, when the medical experts have not been asked to give an opinion on those issues? (“Question 2”)

(3)  When should a higher standard of care be imposed on a public health care employer on the ground that it may have, or expected to have, greater than average knowledge of particular risks to which its employees are exposed? Should a higher standard of care be imposed if and only if the employer has actual knowledge (which was more than what an average reasonable employer should have) of the particular risks of injury that the employee was exposed to? (“Question 3”)

(4)  In considering reasonable foreseeability of a risk of work-related upper limb disorders (“WRULD”), whether the risk may be defined so broadly that it is sufficient to show that an employee has to use his/her hands and wrists repeatedly and forcefully, without further regard to the general nature, pattern and frequency that his/her hands and wrists have to be so used in the course of his/her actual work? (“Question 4”)

(5)  Whether an employer is obliged to adjust, or consider to adjust, an employee’s duties (in particular, by reducing his/her workload) after he/she returns to work upon expiry of sick leave, when the treating doctor did not grant further sick leave and has not advised that he/she is unsuitable to resume his/her normal duties; or is the employer entitled to require the employee to resume normal duties in these circumstances? (“Question 5”)

(6)  Whether an employer may be found liable for exposing an employee to a risk of WRULD unreasonably on the ground that his/her workload was excessive when compared with that of his/her colleagues, but without any evidence that his/her heavier workload exceeded any objective or external standard of what a reasonable workload in the circumstances should be? (“Question 6”)

(7)  To determine whether any injury due to WRULD is divisible in that there is a rational basis for an objective apportionment on quantum, whether it is sufficient to show that the injury has become worse as a result of repeated stresses over a period of time for part of which the defendant is not liable irrespective of when symptoms first emerged? (“Question 7”)

(8)  Whether pensions received and to be received before the end of the notional or usual retirement age of a plaintiff employee (who has been compelled to retire earlier due to injury) should be taken into account in assessing his/her loss of earnings and future loss of earnings? (“Question 8”)

5.  The defendant also seeks leave to appeal on the “or otherwise” limb, on account of errors in the CA Judgment which formed the basis of a number of the above questions. The matters relied on under this limb correspond largely to some of the grounds in the questions.

  We will deal with the application on paper.

Question 1: the pleading point

6.  The complaint under this ground is a pleading point, namely, that the defendant was found liable on the primary basis that the plaintiff was assigned excessive SX on 30 October 1999, which was not a basis pleaded in the amended statement of claim (“ASOC”), and the only basis of liability pleaded in the ASOC was that the plaintiff was assigned an excessive workload from September 1998 until about the end of January 2000.

7.  This complaint arises out of the specific context of this case. Generally, fact-sensitive complaints relating to the specific circumstances of the case, or questions which cannot be answered in the abstract without retrying the facts are not questions of great general or public importance: Safder Tehseen v. Permanent Secretary for Security (2014) 17 HKCFAR 567, at §14; and Tsang Chiu Wing Florence v Li Kin Kan Samathur (FAMV 38 & 39/2014, 10 February 2015), at §12.

8.  Further, the rules governing pleadings are trite. A question of great general or public importance does not arise simply because a party desires well established principles to be revisited: Re Qin Jun [2018] 5 HKLRD 562 at §6.

9.  In any event, the proposed ground of appeal has no reasonable prospect of success:

(1)  A pleading is meant to contain material facts on which a party relies (O.18, r.7). The material facts concerning and leading up to the plaintiff’s performance of the 3 SX on 30 October 1999 were clearly set out in the ASOC (see §§45-49 of the CA Judgment). These ought to be sufficient to put the defendant on notice of the material facts and adduce such evidence (medical or otherwise) on the injury of the plaintiff on 30 October 1999 as it thought fit.

(2)  A court is to be guided by what is fair and just in the circumstances, and rules of pleadings are not to be construed as encouragement to take pedantic, small or insignificant points of pleadings. (Wing Hang Bank Ltd v Crystal Jet International Ltd [2005] 2 HKLRD 795, 799G) Even though the ASOC did not plead the defendant’s liability on a primary basis and an alternative basis, there is no unfairness to the defendant in the circumstances of this case:

(a)  It cannot be said that the defendant was not aware of the significance of the events leading up to and on 30 October 1999, since the plaintiff expressly addressed those in the opening and closing submissions, and the defendant cross-examined the plaintiff extensively on those events (see §50-53 of the CA Judgment); and

(b)  The plaintiff relied on the same set of facts and did not plead any alternative facts. (§54 of the Judgment)

10.  We refuse to give leave to appeal on Question 1.

Question 2 – approach to evidence & fact finding

11.  The complaint under this ground is essentially that the court found that the plaintiff sustained an “acute-on-chronic damage of the TFC” on 30 October 1999, even though the medical experts were not asked to provide an opinion on the specific injury sustained by the plaintiff on that day.

12.  Again, this complaint arises out of the specific context of this case. As acknowledged by the defendant in its written submissions dated 21 April 2021, “the court may in appropriate circumstances use common sense to fill a gap in the evidence due to limitations of medical or scientific knowledge” (at §5). It is clear that this is a matter which cannot be answered in the abstract without having regard to the circumstances of this case or retrying the facts.

13.  Moreover, the court’s approach to medical evidence and fact finding is well established and does not require revisiting. See for example McGhee v. National Coal Board [1973] 1 WLR 1 at 5B and 11H, and Ocean Tramping Co Ltd v Lee Kin-kai [1991] 2 HKLR 232 at 235I-236E. The court is assisted but not dictated to by medial evidence and is entitled to apply rules of logical deduction and common sense to draw inferences in appropriate circumstances.

14.  In any event, the proposed ground of appeal has no reasonable prospect of success. As discussed at §§60-64 of the CA Judgment, even though the medical experts were not specifically asked to provide an opinion on the injury sustained by the plaintiff on 30 October 1999, there was nevertheless sufficient medical and factual evidence upon which to conclude on a balance of probabilities that the plaintiff suffered acute-on-chronic damage of the TFC on 30 October 1999. “The court should not embark on a review of concurrent findings unless there is a reasonable basis for thinking that there has been a miscarriage of justice or a critical violation of some principle of law or procedure, in other words, unless there is good reason to believe that the review will lead to reversal of the findings made below”. (Chinachem Charitable Foundation Ltd (2011) 14 HKCFAR 798 at §58)

15.  For the above reasons, it is not appropriate to grant leave for Question 2.

Question 3 – standard of care of a public health care employer

16.  This ground concerns the standard of care imposed on an employer which is a public health care provider, and whether a higher standard of care should be imposed on the ground that it (by virtue of being a public health care provider) ought to have knowledge of particular risks to which its employees are exposed, or only when it has actual knowledge of such risks.

17.  The principles governing the standard of care to be imposed on a health care employer vis-à-vis its employee are well established:

(1)  As held in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 at 1783D-F, the overall test is the conduct of reasonable and prudent employer taking positive thought for the safety of his workers in the light of what he knows or ought to know.

(2)  In Dugmore v Swansea NHS Trust [2003] ICR 574, a case similarly concerning an employer in the business of providing health care, it was held that the employer by virtue of its expertise in the business may very well actually have, and is expected to have, greater than average knowledge of particular risks to which his employees are exposed.

18.  It follows that where the employer in question is a health care provider, the standard of care is to be determined having regard to what a reasonable and prudent health care employer knows or ought to know.

19.  These are well established principles and we do not think any question of great general or public importance arises just because the defendant desires to revisit them.

20.  Further and in any event, this ground has no reasonable prospect of success. As discussed at §§75-83 of the CA Judgment, there was sufficient evidence that, by 1999 DOH would be put on notice and therefore ought to know about matters concerning the risks of injury inherent to and associated with the type and pattern of work of dental workers in its employment.

21.  We decline to grant leave to appeal for Question 3.

Question 4 – reasonable foreseeability

22.  This ground relates to the reasonable foreseeability of the risk of WRULD, and to establish such risk is reasonably foreseeable, whether it is sufficient to show that an employee has to use his/her hands and wrists repeatedly and forcefully, without further regard to the general nature, pattern and frequency that his/her hands and wrists have to be so used in the course of his/her actual work.

23.  This question did not arise from the CA Judgment. We did not hold that, to establish reasonable foreseeability of the risk of WRULD, it is sufficient to show that the employee used his/her hands and wrists repeatedly and forcefully without regard to the general nature, pattern and frequency of the usage of his/her hands and wrists.

24.  As discussed in the CA Judgment at §§82-88, in finding the reasonable foreseeability of the plaintiff’s injury, this court took into consideration a variety of factors, including DOH’s knowledge/deemed knowledge of WRULD, DOH’s evaluation system and statistical analysis for the Dental Service, and the plaintiff’s heavy workload in particular the number of SX assigned to her. These are factors which shed light on the general nature, pattern and frequency of the usage of the plaintiff’s hands and wrists.

25.  We held that that since the evidence shows that the plaintiff’s work was known to carry a risk of causing strains and pains to the hands and wrists, the precise extent and definition of the injury, or the precise manner of the infliction need not be foreseeable (§§81-83, 89 of the CA Judgment). However, we did not hold that the general nature, pattern and frequency of the usage of the plaintiff’s hands and wrists should be disregarded.

26.  In formulating a question of great general or public importance, it is important to avoid raising questions unrelated to the actual circumstances of the case: Dr Leung Shu Piu v Medical Council of Hong Kong (2014) 17 HKCFAR 356 at §13.

27.  Further, the principles concerning reasonable foreseeability in work-related accidents are well established: see Munkman on Employer’s Liability (17^th ed, 2019) at §19.9 (quoted at §81 of the CA Judgment); Hughes v Lord Advocate [1963] AC 837; and Robb v Salamis (M&I) Ltd (2007) S.C. (H.L.) 71 (a case concerning a work related accident applying Hughes at §29). Where an employee’s work is known or should have been known to carry a risk of causing strains and pains to the forearm, hand and wrist, and the consequence is one which was within the general range which might be foreseen, neither the precise extent of the damage nor the precise manner of its infliction need be foreseeable. No question of great general or public importance arises merely because the defendant wishes to revisit such principles.

28.  For these reasons, no leave to appeal would be granted for Question 4.

Question 5 – whether medical advice/sick leave certificate required to find failure to adjust workload as breach of duty

29.  This ground relates to the issue that, given that the plaintiff was not granted further sick leave by the treating doctor on 25 October 1999 and there was no medical advice at that point that she should not resume her normal duties, whether DOH breached its duty by not adjusting or considering adjustment of the plaintiff’s workload when she returned to work.

30.  We do not consider this ground raises any question of law of great, general or public importance.

31.  First, this ground is related to specific circumstances of this case. This is a question which cannot be answered in the abstract without retrying the facts by taking into account the totality of the evidence of the plaintiff’s condition and knowledge of DOH of her condition (including the fact that the plaintiff wore a hand splint since July/August 1999, the medical and physiotherapy treatment she was given, the three-week sick leave she was given and that her symptom was only partly relieved during the 3-week sick leave, as discussed at §85 of the CA Judgment).

32.  Second, the question is ultimately what a reasonable and prudent employer should do having regard to the relevant circumstances of this case. The principles concerning the standard of care of an employer and breach of duty are trite. No question of great general or public importance arises because the defendant desires to revisit such principles.

33.  Third, insofar as the defendant contends that DOH was entitled to rely on the plaintiff’s treating doctor’s implicit opinion that the plaintiff was suitable to resume normal duties (the defendant’s written submissions dated 21 April 2021 at §§11-12), such contention is unrelated to the actual circumstances of this case:

(1)  The evidence in this case does not support the view that the plaintiff’s treating doctor gave an opinion that the plaintiff was fit to resume normal duties. The consultation note of 30 September 1999 recommended resting the hand for a short period of time, while the consultation note of 25 October 1999 observed that the symptom was only partly relieved during the rest period (see §85 of the CA Judgment).

(2)  There being no medical opinion to the effect that the plaintiff could resume normal duties, no reliance of such opinion by DOH could arise. No evidence of reliance was adduced in this case.

34.  Lastly, there is in any event no reasonable prospect of success under this ground.

35.  Coxall v Goodyear GB Ltd [2003] 1 WLR 536 cited by the defendant is a case where an employer upon receiving medical advice that certain work carries health risks to an employee is found to be under a duty to prevent the employee from carrying out such work. It is difficult to see how this would assist the defendant when, putting its case at the highest, there was merely an absence of medical advice which expressly spelt out the need to lessen the plaintiff’s workload.

36.  As discussed at §§85-89 of the CA Judgment, the totality of the circumstances was such that DOH should have reduced the plaintiff’s workload upon her return from the three-week sick leave in October 1999. That the plaintiff was not granted further sick leave on 25 October 1999 was an immaterial consideration having regard to inter alia the fact that the consultation note of the same date observed that the symptom was only partly relieved during the rest period. “Sick leave certificates are no more than a piece of evidence that has to be evaluated in the light of all the available evidence including medical evidence before the court.” (Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210 at §18)

37.  Consequently, no leave to appeal should be granted for Question 5.

Question 6 – whether external standard required to find risk reasonably foreseeable

38.  This ground relates to the alternative basis on which DOH was found liable, ie assigning excessive SX to the plaintiff for the period between September 1998 and October 1999. The question is whether an employer may be found liable on the ground of assigning excessive workload to the employee in comparison with that of its other employees in the absence of an external standard of what a reasonable workload should be.

39.  Again, the formulation of this ground is fact-laden and related to specific circumstances of this case. As the defendant accepted at §12 of its reply submissions dated 14 May 2021, some risks of injury are reasonably foreseeable without any external standard. It must therefore follow that whether or not an external standard is required to establish reasonable foreseeability is a question which can only be answered by retrying the facts and considering the evidence concerning the workload and condition of the plaintiff and those of other comparable DOH dental workers.

40.  Further, the principles concerning reasonable foreseeability in work-related accidents are well established. No question of great general or public importance arises because the defendant desires to revisit well established principles.

41.  Lastly, in any event, this ground has no reasonable prospect of success. Contrary to the defendant’s contention:

(1)  There is no general principle that an employer’s liability is dependent on the existence of an external/objective standard. See Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd at 1788H-1789A: “[the Ministry of Labour and the Factory Inspectorate] had not yet issued any notices or pamphlets or leaflets about skin cancer of the scrotum. I do not, however, attach great importance to Ministry inaction… The good employer does not merely sit back and wait for official action or regulations.”

(2)  It is difficult to see how Koehler v Cerebos (Australia) Ltd [2005] HCA 15 can be construed as an authority for requiring an external standard in finding a risk reasonably foreseeable. As discussed at §110 of the CA Judgment, the High Court of Australia found no breach of duty by the employer in respect of the employee’s psychiatric injury, since there was no explicit or implicit indication of the employee’s vulnerability to psychiatric injury. It was held in those circumstances that little significance should be given to external or industry standard as to what constituted “overwork”. This case shows that whether or not a risk of injury is reasonably foreseeable depends on all relevant circumstances and external standard (if it exists) is merely one of the factors.

(3)  Doherty v Rugby Joinery (UK) Ltd [2004] ICR 1272 also does not assist the defendant. On the contrary, it shows that the existence of external/objective standard is but one of the factors to be taken into account, and what a reasonable employer should do turns on the facts and “combination of circumstances” of each case (see §§52-54 per Hale LJ, §§57-59 per Auld LJ).

42.  The totality of evidence in the present case is such that, even in the absence of an external standard, it was reasonably foreseeable to the defendant that the amount of SX assigned to the plaintiff over the relevant period would create an unreasonable risk of injury to the wrist (§§109-112 of the CA Judgment).

43.  For the above reasons, we refuse to grant leave for Question 6.

Ground 7 – apportionment on quantum

44.  This ground relates to the apportionment on quantum, in that whether there is sufficient basis for apportionment, when the injury deteriorated as a result of repeated stresses over a period of time for which the defendant is not liable, irrespective of when symptoms first emerged.

45.  The formulation of this ground is premised upon the erroneous assumption that the plaintiff had sustained injury prior to the plaintiff’s posting with NDH (for the period of September 1998 to October 1999). This did not arise from the CA Judgment.

46.  As discussed at §§94-96 of the CA Judgment, this Court found that there was simply no evidence (medical or otherwise) of any wrist-related symptom or disability of the plaintiff at any time during her previous dental career of eight and a half years, and that there was a prima facie presumption that her wrist injury was caused by the working conditions imposed by the defendant, which DOH failed to displace.

47.  There being no evidence of injury prior to the plaintiff’s posting with NDH, this court applied well established legal principles (see §91 of the CA Judgment) and upheld the trial judge’s ruling that there was no rational basis for an objective apportionment of causative liability.

48.  Further and in any event, the formulation of this ground is fact-laden and related to the specific circumstances of this case. As is apparent from §17 of the defendant’s written submissions dated 21 April 2021, it seeks to challenge the finding of fact by this court and the trial judge that the plaintiff suffered no injury prior to her posting at NDH. This is a thinly veiled attempt to retry the facts.

49.  In the circumstances, we do not consider it appropriate to grant leave for Question 7.

Ground 8 – whether pensions should be deducted from loss of earnings

50.  This ground concerns whether pension benefits received and to be received by a plaintiff employee before the notional retirement age should be deducted from the loss of earnings in the assessment of quantum.

51.  We do not think that this raises any question of law of great general or public importance.

52.  First, the principles concerning the deduction of welfare/charitable payments from damages are trite. A question of great general or public importance does not arise simply because the defendant desires well established principles to be revisited.

53.  As discussed at §§131-140 of the CA Judgment, the law as decided by the majority of the Law Lords in Parry v Cleaver [1970] AC 1 and consistently confirmed in, among other cases, Smoker v London Fire Authority [1991] 2 AC 502 and Longden v British Coal Corporation [1998] AC 653 is well established in the UK.

54.  Moreover, the approach against deduction of welfare/charitable payments from damages has been consistently adopted in Hong Kong for decades both by the courts and the legislature:

(1)  In Wong Kou-shee & Another v Chu Che-ping & Chu Sheung-chun [1981] HKLR 249 at 251D-E, the Court of Appeal adopted the reasoning of the majority in Parry v Cleaver and held that the welfare payments should not be deducted from compensation since the payments did not result from the deceased’s death but resulted from the impecuniosity of the dependents and the benevolence of the Government.

(2)  In Tang Kwong-chiu v Lee Fuk-yue [1980] HKLR 588 at 592, the Court of Appeal referred to Lord Wilberforce’s comment in Parry v Cleaver and held that no deduction should be made on account of the plaintiff’s receipt of welfare/charitable payments.

(3)  See also section 7 of the Fatal Accidents Ordinance, Cap 22, as discussed at §139 and footnote 91 of the CA Judgment.

55.  Second, this ground in any event has no reasonable prospect of success:

(1)  The defendant’s contention that pensions should not be treated like insurance monies is beside the point. As discussed at §133 of the CA Judgment (citing Parry v Cleaver and Smoker v London Fire Authority), pension is an entitlement on retirement flowing from the claimant’s past service and contributions and is not affected by his/her ability to earn or recover money outside the occupation. This ratio is not dependent on the pension scheme being regarded as an insurance scheme or analogous to one.

(2)  Contrary to the defendant’s argument, no issue of over compensation in the assessment of loss of earnings can arise, since pension benefits received by the plaintiff upon being invalided from civil service cannot be regarded as earnings or substitute for earnings (see §§137-138 of the CA Judgment, Longden v British Coal Corporation at 668F to G and Smoker v London Fire Authority at 525H to 526C):

(a)  They were payable in respect of disablement from carrying out pensionable employment and were a reward for pre-injury contractual service.

(b)  They were payable irrespective of the plaintiff’s ability to earn in another employment, and independently of any loss caused by the defendant’s breach of duty.

(3)  There are good policy reasons for the established approach. Deducting the pension benefits received by the plaintiff defeats the purpose of the pension scheme[1] in providing financial protection to the employee in the event of ill-health or injury (see §§138-139 of the CA Judgment). As Lord Reid observed (obiter) in Parry v Cleaver at 14C-D: “It would be revolting to the ordinary man’s sense of justice, and therefore contrary to public policy, that the sufferer should have his damages reduced so that he would gain nothing from the benevolence of his friends or relations or of the public at large, and that the only gainer would be the wrongdoer.” His Lordship’s observation is equally apposite where the payment under consideration is a pension benefit prudently built into the plaintiff’s service contract.

56.  For the above reasons, we refuse to grant leave to appeal for Question 8.

The “or otherwise” limb

57.  The usual practice for this court is not to grant leave on this limb but leave it to the Appeal Committee of the Court of Final Appeal to decide if leave should be granted on this basis. There are no special circumstances in the present case that warrant departure from the usual practice.

Conclusion and costs

58.  For the foregoing reasons, the notice of motion is dismissed with costs to the plaintiff.

59.  Having considered the plaintiff’s statement of costs for summary assessment, it seems to us that the amount in respect of counsel’s fees is excessive. We will make a reduction accordingly. Our assessment of reasonable costs is $480,706. We make a further order that the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.